Lady Justice Arden on proportionality

She makes a number of interesting points about differences between the way different courts deal with proportionality – persuasively dishing the idea that it’s a simple, obvious concept. And she raises important questions about how far proportionality permits, or should permit, judicial interference in political judgments.

Especially interesting is her discussion of the Supreme Court’s 2011 judgment in R (Quila) v Home Secretary, in which the Court upheld the Court of Appeal’s decision to limit the effect of an immigration rule introduced by the Home Secretary with the aim of combatting forced marriages. Clearly she’s sympathetic to Lord Brown’s dissent in that case, and fears that the Supreme Court went too far in imposing its policy view. Her discussion of the case raises a crucial wider point, though, about the dangerous power of courts to close down social policy options before they have a chance to be proved effective. That’s precisely my concern about the European Court of Human Rights’s approach to the UK’s DNA database.

I’m not sure I agree with Arden LJ’s suggestion (though she’s coy about her own view and wants us to be the judge) that the concept of proportionality might replace the concept of unreasonableness in our domestic public law. I’ve never quite been sure why anyone thinks this would be desirable, since judges’ ideas of reasonableness are inexorably being influenced by proportionality in any case. I suspect the concept of unreasonableness may have potential depths and resources not wholly subsumed in proportionality. But hers is a useful contribution to this ongoing debate in public law.

I think there is a lot of confusion here. I think that some people see proportionality almost in utilitarian terms whereby it is permissible to create a policy that is unjust to enormous numbers of people so long as the wrong addressed by the policy is sufficiently important.

I do not agree. I think that there needs to be a logical connection between the policy introduced and the wrong being addressed. It would never be permissible to deter forced marriaged by placing an age restriction on the right to enter the UK because, unless it can be shown that a substantial proportion of young marriages are forced, there is no logical connection between the two at all. As no-one asserts that a substantial proportion of young marriages are forced, it simply does not matter whether the policy would deter forced marriages or not. It could never justify denying rights to so many and so, in my opinion, proportionality does not come into it at all.

A much better policy, and one which shockingly was not in force when this immigration policy was introduced, is to criminalise forced marriage. I personally think that it would be possible to go further and make it a criminal offence for anyone to use a forced marriage of a means of entering the UK. In these cases, there is an obvious logical connection between the wrong addressed and the policy and it is plainly proportionate to introduce such a policy.

For me, there is a first step to be considered before embarking on the weighing-up exercise of proportionality and that it whether or not the thing being challenged produces arbritary or discriminatory consequences. Justice demands that arbitrariness is never justified.